United States District Court, E.D. North Carolina, Eastern Division
ERIC J. RODRIGUEZ, Petitioner,
UNITED STATES OF AMERICA, Respondent.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
matter is before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C,
§ 2255 [DE 38] and the government's motion to
dismiss [DE 42]. For the reasons discussed below,
respondent's motion is GRANTED and petitioner's
§ 2255 motion is DISMISSED.
29, 2016, petitioner pleaded guilty, pursuant to a written
plea agreement, to counts one and three of his indictment:
possession of a firearm by a convicted felon, in violation of
18 U.S.C. 922(g)(1)(and 924, and possession of a firearm in
furtherance of a drug trafficking offense, in violation of 18
U.S.C. §§ 924(c) and 924(c)(A)(i). Petitioner was
sentenced on November 10, 2016 to a term of 54 months'
imprisonment on count on and 60 months' imprisonment on
count three, consecutive, for a total of 114 months.
Petitioner did not appeal his judgment. Petitioner has now
filed a motion under § 2255, alleging that he received
ineffective assistance of counsel. Petitioner claims his
attorney improperly advised him regarding count three, failed
to investigate the law, and failed to file a motion to
survive a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), [petitioner's] '[f]actual allegations must
be enough to raise a right to relief above the speculative
level,' thereby 'nudg[ing] their claims across the
line from conceivable to plausible.'" Aziz v.
Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011)
(quoting BellAtl. Corp. v. Twombley, 550 U.S. 544,
555 (2007)). Additionally, "vague and conclusory
allegations contained in a § 2255 petition may be
disposed of without further investigation by the District
Court." United States v. Dyess, 70 F.3d 354,
359 (4th Cir. 2013) (quotation omitted).
ineffective assistance of counsel claim fails because he has
not satisfied the two-pronged requirements of Strickland
v. Washington, 466 U.S. 668, 687 (1984). First, a
petitioner must show that the representation he received fell
below an objective standard of reasonableness. Id.
at 688. This Court must be "highly deferential" of
counsel's performance and must make every effort to
"eliminate the distorting effects of hindsight."
Id. at 689. Therefore, the Court must "indulge
a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance."
Id. The second prong is met where there is "a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Id. at 694.
has made three arguments about his attorney. Two relate to
his § 924(c) conviction, and the third relates to
counsel's failure to file a motion to suppress the
results of a search.
two § 924(c) arguments are essentially that the facts of
his case were insufficient to sustain a conviction on that
count. To be convicted of possessing a firearm in furtherance
of a drug trafficking offense, there must be a nexus between
the drug offense and the firearm. Petitioner argues that
there was no nexus in his case, and so his counsel's
advice that he should plead guilty to the charge constituted
ineffective assistance of counsel.
a firearm furthered, advanced, or helped forward a drug
trafficking crime is a factual question. United States v.
Lomax, 293 F.3d 701, 705 (4th. Cir. 2002).
Petitioner's attorney's decision not to put the issue
before a jury was a strategic choice. See Powell v.
Kelly, 562 F.3d 656, 670 (4th Cir. 2009). Based on the
evidence in this case, in which defendant was found in
possession of ammunition, cocaine, digital scales, baggies,
currency, and a gun, that decision does not fall below an
objective standard of reasonableness. Nor is there a
reasonable probability that the result of the proceeding
would have been different had the question been put before a
jury. Therefore, petitioner's Strickland claims
on these grounds fail.
also argues that counsel failed to move to suppress evidence
that resulted from an illegal search. Not filing a motion to
suppress was a strategic choice. See Powell v.
Kelly, 562 F.3d 656, 670 (4th Cir. 2009). Petitioner
pleaded guilty pursuant to a written plea agreement that
included the dismissal of count two of his indictment. He
provided a written statement acknowledging that he possessed
the gun and received a downward adjustment for acceptance of
responsibility. This indicates that counsel's decision
was not objectively unreasonable, nor is it likely that a
different decision would have resulted in a different
outcome. Petitioner's Strickland claim on this
basis is dismissed.
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2) (2000). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise debatable.
Miller-El v. Cockrell,537 U.S. 322, 336-38 (2003);
Slack v. McDaniel,529 U.S. 473, 484 (2000);
Rose v. Lee,252 F.3d 676, 683-84 (4th Cir. ...